Attorney David Lane says Brigham may sue city again

By Mitchell Byars, Camera Staff Writer

Posted:
08/28/2012 08:59:57 AM MDT

Updated:
08/28/2012 09:26:12 PM MDT

Seth Brigham, right, leaves a Boulder courtroom on Monday, Aug. 6, 2012, after a hearing on the city's request for a permanent retraining order against the longtime City Council critic. (Rachel Woolf / For the Camera)

Citing First Amendment concerns, a Boulder County judge on Tuesday rejected a request by the city of Boulder for a permanent restraining order against Seth Brigham, ruling the longtime City Council critic does not pose an imminent threat -- a decision that could cost the city, as Brigham's attorney weighs a second lawsuit against Boulder.

Boulder City Attorney Tom Carr sought the protection order on behalf of the City Council after workplace violence expert John Nicoletti testified that Brigham's behavior was a indication he possibly could be a danger to council members. Nicoletti cited Brigham's numerous e-mails to elected officials and outbursts at council meetings as evidence.

But Judge David Archuleta, in a ruling issued Tuesday, wrote that the evidence presented by the city was not substantial enough to warrant a restraining order that he felt would infringe on Brigham's First Amendment rights.

"Although I do not believe that (the city of Boulder) necessarily intended to silence (Brigham's) political speech, it is clear to me that approving a permanent restraining order in this case would do just that," Archuleta wrote. "In sum, although I have considered this case very carefully... this case is not a particularly compelling one for me."

David Lane, Brigham's attorney, said he and his client were happy with the decision, and that Brigham -- who had been under a temporary restraining order barring him from attending council meetings or e-mailing council members directly -- will once again be able to attend meetings.

"Finally someone in Boulder understands the First Amendment," Lane said. "The judge hit it right on the head -- it is protected speech."

Brigham is out of town visiting family, but Lane said he intends to address the City Council at its meeting next Tuesday.

"He was overjoyed that the court recognized his First Amendment rights," Lane said.

Boulder spokeswoman Sarah Huntley said city officials were "disappointed" by the ruling.

"The city did not make the decision to seek a protection order against Mr. Brigham lightly," she said. "The concern was and continues to be public safety and the safety of public officials from behavior that is erratic and threatening. The city believes that Dr. Nicoletti's testimony established that Mr. Brigham's escalating behavior is cause for alarm and preventative action."

Crossing the line

Lane said the protection order was a way for council members to quiet Brigham, who had been raising concerns about conflicts of interest, particularly in the case of council members George Karakehian and KC Becker.

"They were annoyed by Seth Brigham sending them e-mails about their conflicts of interest and their ethical obligations to disclose those conflicts," Lane said. "Everyone in Boulder should be disturbed they were trying to shut a citizen up for digging into conflicts of interest."

But Huntley said the protection order was not an effort to silence the longtime critic. In his testimony, Nicoletti said Brigham's e-mails to Becker -- which included pictures of her house and family -- began crossing the line from political to personal attacks.

"The city considers freedom of speech to be a core tenet of our government system and we have always said we understand public officials are subject to scrutiny and criticism," Huntley said. "I guess where we differ from the ruling is that, from a city perspective, our city officials and their families should not be subject to repeated abuse and scare tactics."

Becker responded Tuesday night, saying in an email:

"My concern with Seth has never been about his unsubstantiated and targeted accusations. In my own case, I never had any conflict of interest and I don't have anything that needs defending there. My concern was that Seth showed obsessive interest in my personal life. It was a nice trick of Mr. Lane's to distract the judge from Seth's history of uncontrolled behavior by trying to make it about conflicts of interest that never even existed. ...

"Going forward, I will watch for any continued and concerning pattern that shows Seth's delusions and obsessions about me are again a focus for him."

'Zero tolerance policy'

Lane said he and Brigham will consider filing a lawsuit against the city in federal court, but first will talk to Boulder to see whether a settlement can be reached. In 2010, the city reached a $10,000 settlement with Brigham over a lawsuit regarding his arrest during a City Council meeting.

"They seem to be persistent violators of Seth Brigham's First Amendment rights, and my office has a zero tolerance policy on constitutional rights violators," Lane said. "We need to talk to Boulder about what they want to do about making it right. They apparently didn't learn a $10,000 lesson. In terms of accountability, if they didn't learn their lesson from that, maybe more money in federal court will."

Huntley said she is not aware of any contact between Lane and city officials about a possible lawsuit, but felt the restraining order request was not a violation of Brigham's rights.

"The city acted in good faith and any lawsuits would be frivolous," she said.

'Excessive and unnecessary'

Lane did say that Councilwoman Lisa Morzel would not be included in any civil lawsuits.

Morzel publicly said she did not believe Brigham was a threat and submitted an affidavit to Archuleta in which she said Boulder's request for the permanent restraining order was "excessive and unnecessary and sets a very bad precedent." She also wrote that, "In my view, several of my colleagues on the City Council have not properly reconciled themselves to the scrutiny that elected officials at times are subjected to."

"She did the right thing, she understands the First Amendment," Lane said. "She should not be dragged down with the rest of Boulder City Council."

In fact, Archuleta, in his ruling, said that Morzel's affidavit was "quite persuasive" in convincing him to deny the restraining order request.

"What could be better evidence of the nature of (Brigham's) conduct and his supposed danger than the experience and thoughts of a veteran council member having experienced the actions of (Brigham)?"

Archuleta added that the City Council should have taken other measures before resorting to a restraining order, such as removing Brigham when he interrupts meetings or filing criminal reports.

"There are other more appropriate remedies available to (Boulder) and they have the added advantage of not threatening anyone's right to an exercise of free speech," the judge wrote.

MacIntyre feels Colorado is capable of making run at bowl gameCU BUFFS FALL CAMPWhen: 29 practices beginning Wednesday morning 8:30-11 a.m. Wednesday, Thursday, Friday and Saturday practices are open to the media and public next week. Full Story

It didn't take long for Denver music observers to notice Plume Varia. Husband and wife Shon and Cherie Cobbs formed the band only two years ago, but after about a year they started finding themselves on best-of lists and playing the scene's top venues. Full Story